Pursuant to the National Football League’s (“NFL”) collective bargaining agreement (“CBA”), the NFL commissioner has the authority to both issue discipline and hear the appeal or designate the arbitrator who will do so. On August 11, 2017, after a yearlong investigation into allegations of domestic abuse, NFL Commissioner Roger Goodell suspended Dallas Cowboys Running Back Ezekiel Elliot for six games after finding that there was “credible evidence” that Elliot had violated the NFL’s personal conduct policy. The NFL Players Association (“NFLPA”) appealed the decision to a Goodell-appointed arbitrator who upheld the decision to suspend Elliot. After the NFL filed a motion in Federal court to confirm the arbitrator’s decision, the NFLPA has been pulling out all the stops to delay and potentially overturn Elliot’s suspension.
Late Monday night, the federal district court denied the NFLPA’s latest request to block Elliott’s suspension until the court rules on whether the arbitration award was proper. The NFLPA argued that Elliott would face irreparable harm if he is forced to serve the suspension before an ultimate ruling on the merits of the case and that there were significant questions as to fairness as to Goodell’s decision to suspend Elliot and the arbitration which upheld the award. Specifically, the NFLPA argued that the arbitration was unfair because it was denied an opportunity to cross-examine Elliot’s accuser to rebut the NFL investigators’ findings. The NFLA also claimed unfairness over the fact that it was not able to question Goodell on the reasoning behind his decision and why he seemingly disregarded the NFL co-lead investigator’s conclusion that Elliot’s accuser was not credible and that her allegations lacked corroborating evidence.
The Judge denied the NFLPA’s request, concluding that Elliott would not be irreparably harmed by missing six games and that any harm suffered is outweighed by the NFL’s interest in using its collectively bargained authority to root out domestic violence by players. The NFLPA immediately appealed to the Second Circuit Court of Appeals, asking for an emergency injunction.
The Second Circuit agreed to hear the appeal on an expedited basis and temporarily stayed the suspension pending its decision. This allowed Elliot to play this past Sunday. The Second Circuit heard arguments from both sides on Thursday, November 8, 2017, and just today issued a ruling in the NFL’s favor, concluding that the NFLPA had failed to meet the requisite standard establishing an injunction was necessary. The NFLPA can request all of the Second Circuit judges rehear its request, or can attempt to appeal the decision to the Supreme Court. However, both options are extreme long shots. The more likely scenario is that Elliot will have to immediately begin serving his six-game suspension. Whether he will serve the entire six-game suspension remains unclear as the Second Circuit has agreed to hear the appeal of the arbitrator’s decision on an expedited basis, which means a decision may come in early December.
COUNSEL TO MANAGEMENT:
As was the case with the battle over Tom Brady’s suspension, although the NFLPA can fight in court to overturn the arbitrator’s decision, the NFL has been in a position of strength throughout the whole Ezekiel Elliot fiasco due to the Commissioner’s broad powers as bargained for in the parties’ CBA. This serves as a good reminder that while having a CBA in place is generally restrictive, employers can nevertheless retain considerable disciplinary discretion through a well-constructed CBA. Therefore, it is important that companies with a unionized workforce carefully analyze and forcefully negotiate the terms of their CBAs. Please contact the experts at The Saqui Law Group if you have questions about your company’s CBA.